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Administrative and municipal law
Reference:
Vilacheva M.N.
Controversial aspects of child care and supervision in the legal structure of the constitutional right to preschool education
// Administrative and municipal law.
2024. ¹ 4.
P. 71-94.
DOI: 10.7256/2454-0595.2024.4.70657 EDN: YOHMBD URL: https://en.nbpublish.com/library_read_article.php?id=70657
Controversial aspects of child care and supervision in the legal structure of the constitutional right to preschool education
Vilacheva Mariya Nikolaevna
Senior Lecturer; Department of Constitutional and International Law; Ural State University of Economics
45 Narodnaya Volya str., room 750, Sverdlovsk region, Yekaterinburg, 620144, Russia
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vilacheva.m@yandex.ru
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DOI: 10.7256/2454-0595.2024.4.70657
EDN: YOHMBD
Received:
05-05-2024
Published:
05-09-2024
Abstract:
The article examines the little-studied topic of the content of the right to preschool education in the Russian Federation. To determine the content of this right, the author examines in detail and uses two methodological approaches in the study of the general right to education, which are then used to determine the legal nature of the right to preschool education: as a process and as a specific result of the activity of the subject entitled to the right to education. The necessity of including into the existing legal structure the right to preschool education (training and upbringing of persons from birth to entry into school) supervision and care, which is not legally related to the state’s function of providing accessible and free education, but is a civil legal service that is financially burdensome for parents (legal representatives). The main conclusion of the study is the need to include in the existing legal structure the right to preschool education (training and upbringing of persons from birth to entry into school), supervision and care, which legally do not relate to the state’s function of providing accessible and free education, but are civil law a service that financially burdens parents (legal representatives). Since the legislative division of preschool education into education according to the relevant educational program (assumed at the expense of budgetary funds in pursuance of the constitutional principle of free education), and separately – supervision and care (assumed at the expense of parents (legal representatives) on the basis of a civil contract) leads to lack of universal financial support standards. Thus, the constitutional right to preschool education has four components in its content: training, education, supervision and care, which are in inextricable unity. The absence of at least one of the components destroys the structure of the legal construct “preschool education”.
Keywords:
preschool education, education, supervision and care, constitutional rights, children's rights, right to education, preschool education programs, Federal State Educational Standard, educational relations, service
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According to Article 43 of the Constitution of the Russian Federation, everyone is guaranteed free and generally accessible preschool education as part of a comprehensive constitutional right to education. In accordance with Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (hereinafter – the Federal Law "On Education"), preschool education is the initial level of general education, preceding primary general, basic general and secondary general education. Building the legal structure of the right to pre-school education has a doctrinal complexity, since today in legal science insufficient attention is paid to the content of the right to pre-school education, it is considered at the junction with research in the field of pedagogy [9, 14, 16, 23, 24], and in the key Federal law "On Education", its regulation is devoted to there is only one article (Article 64). At the same time, the content of the right to pre-school education cannot be considered in isolation from the general category of "the right to education" [3, 5, 21, 25], which in the Federal Law "On Education" is understood as the process of education and training (which is a public good); acquired in the interests of a person, family, society, and the state knowledge, skills, skills, values (art. 2). That is, as a starting point, two main methodological approaches can be used in the study of the general right to education, which will later be applied to determine the legal nature of the right to pre-school education: as a process (process approach) and as a result of the activity of the subject endowed with this right (value approach). Thus, with a value–based approach, the right to education can be studied as a kind of social good, the result of cognitive activity (education and training) - a set of knowledge, skills, skills, competencies, which V.V. Spasskaya calls an immaterial spiritual good [Spasskaya V. V. Legal regulation of educational relations: theoretical and legal research: dis. ...Dr. Yurid. sciences': 12.00.01 / Veronika Vsevolodovna Spasskaya. – M.: Russian Academy of State Services under the President of the Russian Federation, 2007. p. 16.]. T.E. Petrosyan adheres to a similar approach, calling the right to education "educational benefits" [Petrosyan T. E. The constitutional right to education in Russia and foreign countries: a comparative legal study: abstract of the thesis ... cand. Jurid. sciences': 12.00.02 / Petrosyan Tom Edwardovich. – M.: Russian Academy of Economics and Public Services under the President of the Russian Federation, 2014. – 24 p.]. Refers the right to education to the result of educational activity and T.N. Matyusheva, defining the right to education as follows: "one of the essential social human rights aimed at obtaining a certain amount of knowledge, skills and abilities based on mutual cooperation of subjects of the field of education, with the aim of comprehensive personal development and preparation for life in society" [Matyusheva T. N. The legal status of a citizen of the Russian Federation in the field of education: dis. ... cand. Jurid. sciences': 12.00.02 / Matyusheva Tatyana Nikolaevna. – Volgograd: Rostov State University, 1999. p. 24.]. Within the framework of the process approach, the emphasis shifts to the dynamics of development, self-development and education of the individual, associated with the acquisition of new knowledge, skills and abilities, the acquisition of practical experience in their application and transfer, that is, the benefit of the right to education is the very process of learning and education. For example, L.A. Dolnikova, when considering the term "education", draws attention to the importance of the process of assimilation of systematized knowledge, skills and abilities [Dolnikova L. A. The constitutional right to education of Soviet citizens: abstract. ... cand. Jurid. sciences': 12.00.02 / Dolnikova Lyudmila Alexandrovna. Saratov, 1984. – 15 p.]. A similar point of view is held by A.A. Menshikov, who believes that "the constitutional right to education is not the sum of individual possibilities, but the opportunity to constantly improve one's knowledge in all existing forms of education" [Menshikov A. A. Administrative and legal regulation of education in the Russian Federation: dis. ... cand. Jurid. sciences': 12.00.02 / Menshikov Alexey Anatolyevich. – Moscow: Russian Academy of State Services under the President of the Russian Federation, 1998. p. 61.]. In turn, N.S. Golubkova defines the right to education as "an inalienable opportunity for everyone to continuously study and be educated in accordance with their experience and individual abilities" [Dolnikova L. A. The constitutional right to education of Soviet citizens: dis. ... cand. Jurid. sciences': 12.00.02 / Dolnikova Lyudmila Alexandrovna. Saratov, 1984. – 187 p.]. The features of value and process approaches can be found in the definition of J.L. Weiderhoven and J.M. Gruff, who put forward the most detailed term of the right to education: "this is freedom (rejection of excessive interference from the government), and the right of a certain individual (based on the development of the individual) and collective law (the right of a group regardless of it is based on ideology, philosophy or pedagogical concept), political and ideological law, taking into account the compatibility of the right to education with other rights (freedom of religion and belief, freedom of speech and assembly), as well as socio-cultural law, the implementation of which is necessary in the context of education and the three aspects of the latter (personal development, preparation for social life, the final level of knowledge)" [7]. Based on the above approaches, it can be concluded that the complexity and multicomponence of the legal nature of the right to education, since this right combines various processes in its content: socialization, education, training, mastery of professional competencies, systematization of knowledge, etc. Since Article 64 of the Federal Law "On Education" does not contain a definition of the right to preschool education, it only indicates its focus on the formation of a common culture, the development of physical, intellectual, moral, aesthetic and personal qualities, the formation of prerequisites for educational activities, the preservation and strengthening of the health of preschool children, we consider it permissible to understand the right to preschool education the process of obtaining basic knowledge and skills, nutrition and household services, ensuring personal hygiene and daily routine for children aged from birth to school admission, in order to form an equal level of preparation of children for mastering the primary general education program with the interaction of educational organizations and parents (legal representatives) of children. A special feature of the right to preschool education is the complicated internal structure associated with the individual age characteristics of the subject (from birth to enrollment in school), which leads to the inevitable emergence of two more mandatory elements of the right to preschool education: supervision and child care. According to Article 2 of the Federal Law "On Education", supervision and care is understood as "a set of measures for the organization of nutrition and household services for preschool children, ensuring their observance of personal hygiene and daily routine." It seems that the term "child maintenance" used in a number of articles of the Federal Law "On Education" is synonymous with supervision and care, if we use the method of broad interpretation. We can characterize child care as control by legal representatives or a teacher, which is a systematic monitoring of the child's activities, since preschool education cannot take place in isolation from adults, not only from the point of view of educational and educational processes, but also to ensure the safety of children.
Care, unlike supervision, does not characterize the state of security (safe learning conditions), but the social and pedagogical aspects of the process aimed at maintaining a healthy physiological, sanitary, emotional and mental state of the child in the educational process. Unfortunately, the legislation lags far behind in the regulation of this component, and subordinate regulatory legal acts link care with recreation: the presence of a child in a certain period of time in organizations that carry out their rest and recovery. One should not confuse supervision and care with another similar legal category, "child care", which is the right and constitutional duty of parents within the framework of family relations [8, 18]. Taking care of children, their upbringing, as a constitutional duty of parents, within the meaning of Part 2 of Article 38 of the Constitution of the Russian Federation, suggest that infringement of the rights of a child, creating unmotivated life discomfort for him are incompatible with the very nature of relations that have historically developed and ensure the survival and development of humans as a biological species [Resolution of the Constitutional Court of the Russian Federation dated 06/08/2010 No. 13-P "In the case of checking the constitutionality of paragraph 4 of Article 292 of the Civil Code of the Russian Federation in connection with the complaint of citizen V.V. Chadaeva"]. Care and upbringing are predetermined by kinship and family ties, while education is predetermined by the need for harmonious personal development, the state's interest in early socialization of children according to generally accepted guidelines within a certain educational methodology, without which it is impossible to ensure a systematic education. It is impossible to combine the categories of "education" and "training" to the extent of confusion within the framework of the Russian educational system [6, 10, 17, 19], after all, any of the levels of education has its own program and the federal state educational standard (FSES), the implementation of which is entrusted to professional teachers. A child can receive care only in the family, when it comes to state institutions, supervision and care activities are assigned to the relevant organizations, therefore supervision and care in the design of preschool education has important doctrinal and practical significance: it expands the structure of the right to claim the subjective right to preschool education, outlining the scope of those guarantees that must be provided to the child by the state. The existing legislative structure of the right to preschool education leads to problems of realizing the financial accessibility of the right to preschool education [1, 2, 22], since the free provision of preschool education (implementation of an educational program) is a function of the state and is provided in state and municipal preschool educational organizations, and supervision and care, formally and legally withdrawn from the content preschool education becomes a service implemented on the basis of a civil contract. It is obvious that the implementation of a pre-school education program is impossible without the provision of child care and supervision services, which becomes a mandatory financial burden for his parents (legal representatives). The Federal Law "On Education" allows the right to reduce the amount of parental fees or not to charge it to certain categories of parents (legal representatives). However, this procedure is reduced to regulation by local acts of the educational organization (part 2 of Article 65), which gives the latter unreasonably wide discretion in matters of preferential supervision and care. For example, for disabled children, orphans and children left without parental care, as well as for children with tuberculosis intoxication studying in municipal educational organizations implementing an educational program of preschool education, parental fees for supervision and care are not charged [Decision of the Council of People's Deputies of the city of Kovrov dated 30.08.2017 No. 196 (ed. from 06/28/2023) "On approval of the Regulations on the organization of the provision of public and free preschool, primary general, basic general, secondary general education in basic general education programs, the organization of additional education for children in municipal educational organizations of the municipality of Kovrov, Vladimir region, as well as the organization of recreation for children during the holidays"]. No fee is charged for children, both or one of whose parents are disabled of group I or II and have no income other than a pension [Article 6 of the Law of the Udmurt Republic dated December 23, 2004 No. 89-FZ "On targeted social protection of the population in the Udmurt Republic"]. The preschool education program contains directions for the realization of the child's rights, defines the results of preschool education as the initial stage of the education system. According to I.F. Nikitina's apt remark, each level of education corresponds to a virtually independent subjective right, which has specifics and features that differ from each other (goals, results of implementation, restrictions, etc.) [20]. The right to pre-school education is a subjective public right, therefore, it is inalienable, not subject to free circulation like civil private rights. Only the person to whom it belongs can use it, but cannot transfer it to anyone [12, 13, 15]. Preschool education as a benefit, based on the process and value approaches, cannot be characterized as a specific and, moreover, an exhaustive list of benefits, or the only benefit that can be used. Perhaps it is for this reason that the measure of possible behavior of the subjective right to preschool education is determined based on the content of the educational program of preschool education, which is aimed at the versatile development of preschool children, taking into account their age and individual characteristics, including the achievement by preschool children of the level of development necessary and sufficient for their successful development of educational programs of primary general education (Part 2 of Article 64 of the Federal Law "On Education"). Preschool education programs are developed on the basis of the Federal State Educational Standard for Preschool Education, which states that the content of the preschool education program should ensure the physical and mental development of children in various activities and cover the following structural units representing certain areas of education and upbringing of children: socio-communicative; cognitive development of children's interests; speech; artistic and aesthetic development; physical development. In the Federal State Educational Standard for Preschool Education, there is not a single section devoted to the organization of supervision and care. Perhaps this is due to the Soviet past of preschool education, when educational programs, in their modern understanding, were not used and supervision and care dominated the educational process.
An interesting fact is that the category of "supervision and care" is not widely used in the legislative practice of the post-Soviet countries [4, 11], including the CIS member states, although there is a model law on preschool education at the level of international acts [Resolution No. 47-9 of the Interparliamentary Assembly of the CIS Member States "On the new edition the model law "On preschool Education"". Adopted in St. Petersburg on 04/13/2018], in which similar terminology is used. Moreover, the CIS model law "On Preschool Education" does not contain a definition of preschool education, indicating only that educational activities in the field of preschool education are activities for the implementation of educational programs of preschool education. At the same time, the supervision and care of children is defined as a complex of several interrelated processes: the organization of nutrition and household services for children, ensuring their personal hygiene and daily routine, the implementation of an educational program of preschool education by educational organizations (institutions). This approach seems to be successful, however, not within the framework of the legal construction of "supervision and care", but within the framework of defining the content of the concept of "preschool education". If we do not abandon the legal structure of "supervision and care" in the legislation on preschool education in Russia, it is necessary to ensure its proper legal regulation. As of today, apart from the consolidation of the relevant term in the Federal Law "On Education", no other legal regulation is provided. This gap is quite dangerous, since supervision and care services do not relate to educational activities for the implementation of a pre-school education program, accordingly, a license is not required for its implementation. In fact, the only regulatory legal act in the field of child care and supervision is GOST R 57597-2017 [GOST R 57597-2017. The national standard of the Russian Federation. Household services. Child care and supervision. General requirements (approved and put into effect by the Order of Rosstandart dated 08/10/2017 N 861-st)]. The content of this GOST contains references to other GOST [GOST R 12.1.004 Occupational safety Standards System. Fire safety. General requirements // GOST R 12.1.019 System of occupational safety standards. Electrical safety. General requirements and nomenclature of types of protection; GOST R ISO/IEC 50-2002 Child safety and standards. General requirements; GOST R 55320 Public services. Services provided at home. General provisions; GOST R 55595 Public services. Provision of household management services. Classification and general requirements]. Alas, already at the stage of analyzing the basic terms, it becomes clear that it is impossible to use these norms for a wide range of public relations in the field of preschool education: "child care services: household services related to caring for children at home and provided in accordance with a paid contract." That is, this GOST applies to the activities of the contractor for the care and supervision of children ‒ babysitters, and does not directly relate to the field of preschool education. Against the background of the complete absence of legal regulation of the content of supervision and care activities, their standards, we have to refer to the norms of the SNIP, standardizing the requirements for preschool educational organizations to obtain a license to carry out activities for the implementation of a preschool educational program, among which the central one is: SP 2.4.3648-20 [SP 2.4.3648-20 "Sanitary and epidemiological requirements for organizations of education and training, recreation and health improvement of children and youth", approved by Resolution of the Chief State Sanitary Doctor of the Russian Federation dated 09/28/2020 No. 28], regulating the requirements for the safe placement of buildings, kindergarten territory; conditions of premises and necessary furniture; the number of children and the required area per pupil. It establishes a number of requirements for the organization of supervision and care of children in the process of implementing an educational program of preschool education. For example, if children stay at facilities for more than four hours, children must be provided with hot meals, which can be carried out with the involvement of third-party organizations, legal entities or individual entrepreneurs engaged in the production of ready meals. In cases of group infectious and non-communicable diseases, emergencies, etc., the business entity is obliged to inform the territorial bodies of the federal executive authority carrying out federal state sanitary and epidemiological supervision about the incident within two hours from the moment of detection, and ensure that sanitary and anti-epidemic measures are carried out. When an individual entrepreneur or a legal entity does not implement a pre-school education program, but only provides supervision and care for children, these requirements do not apply to them at all. The issue of catering for pupils of preschool educational organizations is established by interdepartmental Order of the Ministry of Health and Social Development of the Russian Federation and the Ministry of Education and Science of the Russian Federation [Order of the Ministry of Health and Social Development of the Russian Federation No. 213n, Ministry of Education and Science of the Russian Federation No. 178 dated 03/11/2012 "On approval of methodological recommendations on catering for students and pupils of educational institutions"], also provides for fairly strict requirements for the conformity of raw materials and products used in the nutrition of pupils preschool educational organizations, hygienic requirements for the quality and safety of food products provided for by the technical regulations on food safety [Decision of the Commission of the Customs Union dated 09.12.2011 No. 880 "On the adoption of the technical regulations of the Customs Union "On food safety" (together with TR CU 021/2011. Technical regulations of the Customs Union. About food safety)], technical regulations for juice products from fruits and vegetables [Decision of the Commission of the Customs Union dated 09.12.2011 No. 882 "On the adoption of the technical regulations of the Customs Union "Technical regulations for juice products from fruits and vegetables"" (together with "TR CU 023/2011. Technical regulations of the Customs Union. Technical regulations for juice products from fruits and vegetables")], technical regulations for fat and oil products [Decision of the Commission of the Customs Union dated 09.12.2011 No. 883 "On the adoption of the technical regulations of the Customs Union "Technical Regulations for fat and oil products" (together with "TR CU 024/2011. Technical regulations of the Customs Union. Technical regulations for fat and oil products")], Uniform requirements [Decision of the Customs Union Commission dated 05/28/2010 No. 299 "On the application of sanitary measures in the Eurasian Economic Union"], SanPiN 2.3/2.4.3590-20 [Resolution of the Chief State Sanitary Doctor of the Russian Federation dated 10/27/2020 No. 32 "On approval of sanitary and epidemiological rules and norms of SanPiN 2.3/2.4.3590-20 "Sanitary and epidemiological requirements for the organization of public catering" (together with "SanPiN 2.3/2.4.3590-20 . Sanitary and epidemiological rules and norms ...") (Registered with the Ministry of Justice of the Russian Federation on 11.11.2020 No. 60833)], SanPiN 2.3.2.1078-01 [Resolution of the Chief State Sanitary Doctor of the Russian Federation dated 11.11.2001 No. 36 "On the introduction of Sanitary Rules" (together with SanPiN 2.3.2.1078-01. 2.3.2. Food raw materials and foodstuffs. Hygienic requirements for the safety and nutritional value of food products. Sanitary and epidemiological rules and regulations, approved Chief State Sanitary Doctor of the Russian Federation 06.11.2001) (Registered with the Ministry of Justice of the Russian Federation on 03/22/2002 N 3326)].
However, the above acts also apply exclusively to pre-school educational organizations that have received a license to implement a pre-school education program. Thus, the existing excess demand for state and municipal preschool educational institutions with an insufficient number of them led to the development of the sector of commercial services for preschool children in supervision and care, without the implementation of a preschool education program. The Federal Law "On Education" does not provide any guidelines on which organizations and how this activity should be carried out, what requirements are imposed on staff, what are the minimum standards of this service. Based on the above, we believe that, without abandoning the use of the category "supervision and care" in the framework of preschool education, it is necessary to include components of supervision and care activities in the content of the Federal State Educational Standard for Preschool Education. Otherwise, there is not only a doctrinal destruction of the legal structure of the "right to preschool education", but also a confusion of regulatory regulation with the category of "social and household child care services", which are provided not within the framework of educational relations, but civil or social services. By combining supervision and care with education and upbringing within the framework of the unified Federal State Educational Standard for preschool education, the teacher combines the educational function and the function of a nanny, in the case of social and household care: only babysitting services. Since currently the supervision and care of pupils is actually a service, i.e. the educational process is not being carried out at this moment, the provision of such services is not included in the state (municipal) assignment to a state (municipal) educational institution, financing of this activity will be carried out at the expense of the payment of parents (legal representatives) on the basis of a civil contract. In such a situation, the financing of supervision and care, including the remuneration of teachers, cannot be carried out at the expense of funds received from the budget in the form of a subsidy for financial support of the fulfillment of a state (municipal) task. We are convinced that this service in its content should be an integral part of educational activities, i.e. it is necessary to legislate supervision and care in the structure of the implementation of the educational program of preschool education (for example, by conducting an individual work program with students). If it is included in the implemented program, the financing of this activity may be carried out at the expense of the subsidy provided for the implementation of the basic educational program of preschool education. Since the existing legislative division of preschool education into education directly according to the appropriate educational program (it is assumed at the expense of budgetary funds in compliance with the constitutional principle of free education), and separately – supervision and care (it is assumed at the expense of parents (legal representatives) on the basis of a civil law contract) leads to the absence of universal standards of financial security. Thus, the constitutional right to preschool education has four components in its content: education, upbringing (implementation of the current Federal State Educational Standard for Preschool Education), supervision (continuous monitoring of the child) and care (preservation of a healthy physiological, sanitary, emotional and mental state of the child), which are in inseparable unity. The absence of at least one of the components destroys the structure of the legal structure of "preschool education". According to Article 43 of the Constitution of the Russian Federation, everyone is guaranteed free and generally accessible preschool education as part of a comprehensive constitutional right to education. In accordance with Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (hereinafter – the Federal Law "On Education"), preschool education is the initial level of general education, preceding primary general, basic general and secondary general education. Building the legal structure of the right to pre-school education has a doctrinal complexity, since today in legal science insufficient attention is paid to the content of the right to pre-school education, it is considered at the junction with research in the field of pedagogy [9, 14, 16, 23, 24], and in the key Federal law "On Education", its regulation is devoted to there is only one article (Article 64). At the same time, the content of the right to pre-school education cannot be considered in isolation from the general category of "the right to education" [3, 5, 21, 25], which in the Federal Law "On Education" is understood as the process of education and training (which is a public good); acquired in the interests of a person, family, society, and the state knowledge, skills, skills, values (art. 2). That is, as a starting point, two main methodological approaches can be used in the study of the general right to education, which will later be applied to determine the legal nature of the right to pre-school education: as a process (process approach) and as a result of the activity of the subject endowed with this right (value approach). Thus, with a value–based approach, the right to education can be studied as a kind of social good, the result of cognitive activity (education and training) - a set of knowledge, skills, skills, competencies, which V.V. Spasskaya calls an immaterial spiritual good [Spasskaya V. V. Legal regulation of educational relations: theoretical and legal research: dis. ...Dr. Jurid. sciences': 12.00.01 / Veronika Vsevolodovna Spasskaya. – M.: Russian Academy of State Services under the President of the Russian Federation, 2007. p. 16.]. T.E. Petrosyan adheres to a similar approach, calling the right to education "educational benefits" [Petrosyan T. E. The constitutional right to education in Russia and foreign countries: a comparative legal study: abstract of the thesis ... cand. Jurid. sciences': 12.00.02 / Petrosyan Tom Edwardovich. – M.: Russian Academy of Economics and Public Services under the President of the Russian Federation, 2014. – 24 p.]. Refers the right to education to the result of educational activity and T.N. Matyusheva, defining the right to education as follows: "one of the essential social human rights aimed at obtaining a certain amount of knowledge, skills and abilities based on mutual cooperation of subjects of the field of education, with the aim of comprehensive personal development and preparation for life in society" [Matyusheva T. N. The legal status of a citizen of the Russian Federation in the field of education: dis. ... cand. Jurid. sciences': 12.00.02 / Matyusheva Tatyana Nikolaevna. – Volgograd: Rostov State University, 1999. p. 24.]. Within the framework of the process approach, the emphasis shifts to the dynamics of development, self-development and upbringing of the individual, associated with the acquisition of new knowledge, skills and abilities, the acquisition of practical experience in their application and transfer, that is, the benefit of the right to education is the very process of learning and upbringing. For example, L.A. Dolnikova, when considering the term "education", draws attention to the importance of the process of assimilation of systematized knowledge, skills and abilities [Dolnikova L. A. The constitutional right to education of Soviet citizens: abstract. ... cand. Jurid. sciences': 12.00.02 / Dolnikova Lyudmila Alexandrovna. Saratov, 1984. – 15 p.].
A similar point of view is held by A.A. Menshikov, who believes that "the constitutional right to education is not the sum of individual possibilities, but the opportunity to constantly improve one's knowledge in all existing forms of education" [Menshikov A. A. Administrative and legal regulation of education in the Russian Federation: dis. ... cand. Jurid. sciences': 12.00.02 / Menshikov Alexey Anatolyevich. – M: Russian Academy of State Services under the President of the Russian Federation, 1998. p. 61.]. In turn, N.S. Golubkova defines the right to education as "an inalienable opportunity for everyone to continuously study and be educated in accordance with their experience and individual abilities" [Dolnikova L. A. The constitutional right to education of Soviet citizens: dis. ... cand. Jurid. sciences': 12.00.02 / Dolnikova Lyudmila Alexandrovna. Saratov, 1984. – 187 p.]. The features of value and process approaches can be found in the definition of J.L. Weiderhoven and J.M. Gruff, who put forward the most detailed term of the right to education: "this is freedom (rejection of excessive interference from the government), and the right of a certain individual (based on the development of the individual) and collective law (the right of a group regardless of it is based on ideology, philosophy or pedagogical concept), political and ideological law, taking into account the compatibility of the right to education with other rights (freedom of religion and belief, freedom of speech and assembly), as well as socio-cultural law, the implementation of which is necessary in the context of education and the three aspects of the latter (personal development, preparation for social life, the final level of knowledge)" [7]. Based on the above approaches, it can be concluded that the complexity and multicomponence of the legal nature of the right to education, since this right combines various processes in its content: socialization, education, training, mastery of professional competencies, systematization of knowledge, etc. Since Article 64 of the Federal Law "On Education" does not contain a definition of the right to preschool education, it only indicates its focus on the formation of a common culture, the development of physical, intellectual, moral, aesthetic and personal qualities, the formation of prerequisites for educational activities, the preservation and strengthening of the health of preschool children, we consider it permissible to understand the right to preschool education the process of obtaining basic knowledge and skills, nutrition and household services, ensuring personal hygiene and daily routine for children aged from birth to school admission, in order to form an equal level of preparation of children for mastering the primary general education program with the interaction of educational organizations and parents (legal representatives) of children. A special feature of the right to preschool education is the complicated internal structure associated with the individual age characteristics of the subject (from birth to enrollment in school), which leads to the inevitable emergence of two more mandatory elements of the right to preschool education: supervision and child care. According to Article 2 of the Federal Law "On Education", supervision and care is understood as "a set of measures for the organization of nutrition and household services for preschool children, ensuring their observance of personal hygiene and daily routine." It seems that the term "child maintenance" used in a number of articles of the Federal Law "On Education" is synonymous with supervision and care, if we use the method of broad interpretation. We can characterize child care as control by legal representatives or a teacher, which is a systematic monitoring of the child's activities, since preschool education cannot take place in isolation from adults, not only from the point of view of educational and educational processes, but also to ensure the safety of children. Care, unlike supervision, does not characterize the state of security (safe learning conditions), but the social and pedagogical aspects of the process aimed at maintaining a healthy physiological, sanitary, emotional and mental state of the child in the educational process. Unfortunately, the legislation lags far behind in the regulation of this component, and subordinate regulatory legal acts link care with recreation: the presence of a child in a certain period of time in organizations that carry out their rest and recovery. One should not confuse supervision and care with another similar legal category, "child care", which is the right and constitutional duty of parents within the framework of family relations [8, 18]. Taking care of children, their upbringing, as a constitutional duty of parents, within the meaning of Part 2 of Article 38 of the Constitution of the Russian Federation, suggest that infringement of the rights of a child, creating unmotivated life discomfort for him are incompatible with the very nature of relations that have historically developed and ensure the survival and development of humans as a biological species [Resolution of the Constitutional Court of the Russian Federation dated 06/08/2010 No. 13-P "In the case of checking the constitutionality of paragraph 4 of Article 292 of the Civil Code of the Russian Federation in connection with the complaint of citizen V.V. Chadaeva"]. Care and upbringing are predetermined by kinship and family ties, while education is predetermined by the need for harmonious personal development, the state's interest in early socialization of children according to generally accepted guidelines within a certain educational methodology, without which it is impossible to ensure a systematic education. It is impossible to combine the categories of "education" and "training" to the extent of confusion within the framework of the Russian educational system [6, 10, 17, 19], after all, any of the levels of education has its own program and the federal state educational standard (FSES), the implementation of which is entrusted to professional teachers. A child can receive care only in the family, when it comes to state institutions, supervision and care activities are assigned to the relevant organizations, therefore supervision and care in the design of preschool education has important doctrinal and practical significance: it expands the structure of the right to claim the subjective right to preschool education, outlining the scope of those guarantees that should be provided to the child by the state. The existing legislative structure of the right to preschool education leads to problems of realizing the financial accessibility of the right to preschool education [1, 2, 22], since the free provision of preschool education (implementation of an educational program) is a function of the state and is provided in state and municipal preschool educational organizations, and supervision and care, formally and legally withdrawn from the content preschool education becomes a service implemented on the basis of a civil contract. It is obvious that the implementation of a pre-school education program is impossible without the provision of child care services, which becomes a mandatory financial burden for his parents (legal representatives).
The Federal Law "On Education" allows the right to reduce the amount of parental fees or not to charge it to certain categories of parents (legal representatives). However, this procedure is reduced to regulation by local acts of the educational organization (part 2 of Article 65), which gives the latter unreasonably wide discretion in matters of preferential supervision and care. For example, for disabled children, orphans and children left without parental care, as well as for children with tuberculosis intoxication studying in municipal educational organizations implementing an educational program of preschool education, parental fees for supervision and care are not charged [Decision of the Council of People's Deputies of the city of Kovrov dated 30.08.2017 No. 196 (ed. from 06/28/2023) "On approval of the Regulations on the organization of the provision of public and free preschool, primary general, basic general, secondary general education in basic general education programs, the organization of additional education for children in municipal educational organizations of the municipality of Kovrov, Vladimir region, as well as the organization of recreation for children during the holidays"]. No fee is charged for children, both or one of whose parents are disabled of group I or II and have no income other than a pension [Article 6 of the Law of the Udmurt Republic dated December 23, 2004 No. 89-FZ "On targeted social protection of the population in the Udmurt Republic"]. The preschool education program contains directions for the realization of the child's rights, defines the results of preschool education as the initial stage of the education system. According to I.F. Nikitina's apt remark, each level of education corresponds to a virtually independent subjective right, which has specifics and features that differ from each other (goals, results of implementation, restrictions, etc.) [20]. The right to pre-school education is a subjective public right, therefore, it is inalienable, not subject to free circulation like civil private rights. Only the person to whom it belongs can use it, but cannot transfer it to anyone [12, 13, 15]. Preschool education as a benefit, based on the process and value approaches, cannot be characterized as a specific and, moreover, an exhaustive list of benefits, or the only benefit that can be used. Perhaps it is for this reason that the measure of possible behavior of the subjective right to preschool education is determined based on the content of the educational program of preschool education, which is aimed at the versatile development of preschool children, taking into account their age and individual characteristics, including the achievement by preschool children of the level of development necessary and sufficient for their successful development of educational programs of primary general education (Part 2 of Article 64 of the Federal Law "On Education"). Preschool education programs are developed on the basis of the Federal State Educational Standard for Preschool Education, which states that the content of the preschool education program should ensure the physical and mental development of children in various activities and cover the following structural units representing certain areas of education and upbringing of children: socio-communicative; cognitive development of children's interests; speech; artistic and aesthetic development; physical development. In the Federal State Educational Standard for Preschool Education, there is not a single section devoted to the organization of supervision and care. Perhaps this is due to the Soviet past of preschool education, when educational programs, in their modern understanding, were not used and supervision and care dominated the educational process. An interesting fact is that the category of "supervision and care" is not widely used in the legislative practice of the post-Soviet countries [4, 11], including the CIS member states, although there is a model law on preschool education at the level of international acts [Resolution No. 47-9 of the Interparliamentary Assembly of the CIS Member States "On the new edition the model law "On preschool Education"". Adopted in St. Petersburg on 04/13/2018], in which similar terminology is used. Moreover, the CIS model law "On Preschool Education" does not contain a definition of preschool education, indicating only that educational activities in the field of preschool education are activities for the implementation of educational programs of preschool education. At the same time, the supervision and care of children is defined as a complex of several interrelated processes: the organization of nutrition and household services for children, ensuring their personal hygiene and daily routine, the implementation of an educational program of preschool education by educational organizations (institutions). This approach seems to be successful, however, not within the framework of the legal construction of "supervision and care", but within the framework of defining the content of the concept of "preschool education". If we do not abandon the legal structure of "supervision and care" in the legislation on preschool education in Russia, it is necessary to ensure its proper legal regulation. As of today, apart from the consolidation of the relevant term in the Federal Law "On Education", no other legal regulation is provided. This gap is quite dangerous, since supervision and care services do not relate to educational activities for the implementation of a pre-school education program, accordingly, a license is not required for its implementation. In fact, the only regulatory legal act in the field of child care and supervision is GOST R 57597-2017 [GOST R 57597-2017. The national standard of the Russian Federation. Household services. Child care and supervision. General requirements (approved and put into effect by the Order of Rosstandart dated 08/10/2017 N 861-st)]. The content of this GOST contains references to other GOST [GOST R 12.1.004 Occupational safety Standards System. Fire safety. General requirements // GOST R 12.1.019 System of occupational safety standards. Electrical safety. General requirements and nomenclature of types of protection; GOST R ISO/IEC 50-2002 Child safety and standards. General requirements; GOST R 55320 Public services. Services provided at home. General provisions; GOST R 55595 Public services. Provision of household management services. Classification and general requirements]. Alas, already at the stage of analyzing the basic terms, it becomes clear that it is impossible to use these norms for a wide range of public relations in the field of preschool education: "child care services: household services related to caring for children at home and provided in accordance with a paid contract." That is, this GOST applies to the activities of the contractor for the care and supervision of children ‒ babysitters, and does not directly relate to the field of preschool education. Against the background of the complete absence of legal regulation of the content of supervision and care activities, their standards, we have to refer to the norms of the SNIP, standardizing the requirements for preschool educational organizations to obtain a license to carry out activities for the implementation of a preschool educational program, among which the central one is: SP 2.4.3648-20 [SP 2.4.3648-20 "Sanitary and epidemiological requirements for organizations of education and training, recreation and health improvement of children and youth", approved by Resolution of the Chief State Sanitary Doctor of the Russian Federation dated 09/28/2020 No. 28], regulating the requirements for the safe placement of buildings, kindergarten territory; conditions of premises and necessary furniture; the number of children and the required area per pupil.
It establishes a number of requirements for the organization of supervision and care of children in the process of implementing an educational program of preschool education. For example, if children stay at facilities for more than four hours, children should be provided with hot meals, which can be carried out with the involvement of third-party organizations, legal entities or individual entrepreneurs engaged in the production of ready meals. In cases of group infectious and non-communicable diseases, emergencies, etc., the business entity is obliged to inform the territorial bodies of the federal executive authority carrying out federal state sanitary and epidemiological supervision about the incident within two hours from the moment of detection, and ensure that sanitary and anti-epidemic measures are carried out. When an individual entrepreneur or a legal entity does not implement a pre-school education program, but only provides supervision and care for children, these requirements do not apply to them at all. The issue of catering for pupils of preschool educational organizations is established by interdepartmental Order of the Ministry of Health and Social Development of the Russian Federation and the Ministry of Education and Science of the Russian Federation [Order of the Ministry of Health and Social Development of the Russian Federation No. 213n, Ministry of Education and Science of the Russian Federation No. 178 dated 03/11/2012 "On approval of methodological recommendations on catering for students and pupils of educational institutions"], also provides for fairly strict requirements for the conformity of raw materials and products used in the nutrition of pupils preschool educational organizations, hygienic requirements for the quality and safety of food products provided for by the technical regulations on food safety [Decision of the Commission of the Customs Union dated 09.12.2011 No. 880 "On the adoption of the technical regulations of the Customs Union "On food safety" (together with TR CU 021/2011. Technical regulations of the Customs Union. About food safety)], technical regulations for juice products from fruits and vegetables [Decision of the Commission of the Customs Union dated 09.12.2011 No. 882 "On the adoption of the technical regulations of the Customs Union "Technical regulations for juice products from fruits and vegetables"" (together with "TR CU 023/2011. Technical regulations of the Customs Union. Technical regulations for juice products from fruits and vegetables")], technical regulations for fat and oil products [Decision of the Commission of the Customs Union dated 09.12.2011 No. 883 "On the adoption of the technical regulations of the Customs Union "Technical Regulations for fat and oil products" (together with "TR CU 024/2011. Technical regulations of the Customs Union. Technical regulations for fat and oil products")], Uniform requirements [Decision of the Customs Union Commission dated 05/28/2010 No. 299 "On the application of sanitary measures in the Eurasian Economic Union"], SanPiN 2.3/2.4.3590-20 [Resolution of the Chief State Sanitary Doctor of the Russian Federation dated 10/27/2020 No. 32 "On approval of sanitary and epidemiological rules and norms of SanPiN 2.3/2.4.3590-20 "Sanitary and epidemiological requirements for the organization of public catering" (together with "SanPiN 2.3/2.4.3590-20 . Sanitary and epidemiological rules and norms ...") (Registered with the Ministry of Justice of the Russian Federation on 11.11.2020 No. 60833)], SanPiN 2.3.2.1078-01 [Resolution of the Chief State Sanitary Doctor of the Russian Federation dated 11.11.2001 No. 36 "On the introduction of Sanitary Rules" (together with SanPiN 2.3.2.1078-01. 2.3.2. Food raw materials and foodstuffs. Hygienic requirements for the safety and nutritional value of food products. Sanitary and epidemiological rules and regulations, approved Chief State Sanitary Doctor of the Russian Federation 06.11.2001) (Registered with the Ministry of Justice of the Russian Federation on 03/22/2002 N 3326)]. However, the above acts apply exclusively to pre-school educational organizations that have received a license to implement a pre-school education program. Thus, the existing excess demand for state and municipal preschool educational institutions with an insufficient number of them has led to the development of the sector of commercial services for preschool children in supervision and care, without the implementation of a preschool education program. The Federal Law "On Education" does not provide any guidelines on which organizations and how this activity should be carried out, what requirements are imposed on staff, what are the minimum standards of this service. Based on the above, we believe that, without abandoning the use of the category "supervision and care" in the framework of preschool education, it is necessary to include components of supervision and care activities in the content of the Federal State Educational Standard for Preschool Education. Otherwise, there is not only a doctrinal destruction of the legal structure of the "right to preschool education", but also confusion of regulatory regulation with the category of "social and household child care services", which are provided not within the framework of educational relations, but civil or social services. By combining supervision and care with education and upbringing within the framework of the unified Federal State Educational Standard for preschool education, the teacher combines the educational function and the function of a nanny, in the case of social and household care: only babysitting services. Since currently the supervision and care of pupils is actually a service, i.e. the educational process is not being carried out at this moment, the provision of such services is not included in the state (municipal) assignment to a state (municipal) educational institution, financing of this activity will be carried out at the expense of the payment of parents (legal representatives) on the basis of a civil contract. In such a situation, the financing of supervision and care, including the remuneration of teachers, cannot be carried out at the expense of funds received from the budget in the form of a subsidy for financial support of the state (municipal) task. We are convinced that this service in its content should be an integral part of educational activities, i.e. it is necessary to legislate supervision and care in the structure of the implementation of the educational program of preschool education (for example, by conducting an individual work program with students). If it is included in the implemented program, the financing of this activity may be carried out at the expense of the subsidy provided for the implementation of the basic educational program of preschool education. Since the existing legislative division of preschool education into education directly according to the appropriate educational program (it is assumed at the expense of budgetary funds in accordance with the constitutional principle of free education), and separately – supervision and care (it is assumed at the expense of parents (legal representatives) on the basis of a civil law contract) leads to the absence of universal standards of financial security. Thus, the constitutional right to preschool education has four components in its content: education, upbringing (implementation of the current Federal State Educational Standard for Preschool Education), supervision (continuous monitoring of the child) and care (preservation of a healthy physiological, sanitary, emotional and mental state of the child), which are in inseparable unity. The absence of at least one of the components destroys the structure of the legal structure of "preschool education".
References
1. Abankina, I. V. (2022). Vectors of preschool education development in the context of modern challenges. Moscow: HSE.
2. Abankina, I. V. (2021). Accessibility of preschool education at an early age. Moscow: HSE.
3. Afanasyev, V. S. (2010). General theory of law and the State. Edited by V.V. Lazarev. Moscow: Norma: Infra-M.
4. Bartsits, I.N. (2022). Evolution of public administration in the countries of the post-Soviet space. Russian Federation – Russia. Public service, 5(139), 67-118.
5. Belyakina, A.I. (2022). The constitutional right to education and the problems of its implementation. Bulletin of Hands, 2(48), 107.
6. Bylinskaya, N.A. (2023). Comparative legal analysis of the constitutional and legal status of a child in the Russian Federation and foreign countries. Law and the state: theory and practice, 5(221), 128-131.
7. Vanderhoven, J.L. (1994). Legislative formation of higher education structures. Higher education in Europe. Vol. XIX, 73.
8. Varlamova, N.I. (2021). Correlation of principles of protection of the rights, interests of children and their upbringing in the family. International Journal of Humanities and Natural Sciences, 1-3(52), 67-70.
9. Galeeva, A.V. (2019). Realization of the subjective public right to preschool education in the Russian Federation. Young Scientist, 15(253), 94-96.
10. Gerasimova, E.V. (2021). The main directions of the development of preschool education within the framework of the Federal State Educational Standard. Management of a preschool educational institution, 6, 20-25.
11. Gogoberidze, A.G., Izotova, E.I., Ezopova, S.A., & Novitskaya, V.A. (2023). The concept of preschool education development until 2030: tasks and tools for implementation in a single educational space. Modern preschool education, 4(118), 22-34.
12. Zhigalov, S.V. (2021). Constitutional constructions of the rights and obligations of education. Bulletin of the Voronezh State University. Series: Law, 3(46), 27-39.
13. Ivakina, D.S. (2015). Features of the constitutional right of man and citizen to education in the Russian Federation. Law and education, 2, 13.
14. Inoyatova, A., & Zubaydova, N.N. (2023). The importance of preschool education. Science and Education, 12, 548.
15. Kistiakovsky, B. A. (1998). Philosophy and sociology of law. St. Petersburg: Publishing House of Rus. Christians. a humanitarian. in-ta.
16. Kichalyuk, O.N. (2014). Constitutional and legal regulation of the right to accessibility and free preschool education in the Russian Federation. Science Time, 12, 216-220.
17. Kroer, E.V. (2021). The main results of the monitoring study in the field of implementation of the Federal state educational standard of preschool education. Standards and monitoring in education, 3, 3-12.
18. Letova, N. V. (2021). The family status of a child: problems of theory and practice. Moscow: Prospekt.
19. Lyskova, I.V. (2023). The Federal educational program of preschool education is a single core of the content of preschool education. Source, 2(118), 16-17.
20. Nikitina, I.F. (2003). Constitutional characteristics of the right to education. Law and education, 1, 29-36.
21. Ozhiganova, M. V. (2021). Educational law. Yekaterinburg: Publishing House of the Russian State Prof.-Ped. Unita.
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23. Smirnova, D.D. (2018). On the question of the realization of the right to preschool education. Eurasian Law Journal, 7(122), 88-90.
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25. Shkatulla, V.I. (1997). Law and education. State and law. Science, 7, 5-13.
First Peer Review
Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.
The subject of the research in the article submitted for review is, as follows from its title, the controversial aspects of child care in the legal structure of the constitutional right to preschool education. The stated boundaries of the study are observed by the author. The methodology of the research is not disclosed in the text of the article. The relevance of the research topic chosen by the author is beyond doubt and is justified by him as follows: "According to Article 43 of the Constitution of the Russian Federation, everyone is guaranteed free and generally accessible preschool education as part of a comprehensive constitutional right to education. In accordance with Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (hereinafter – the Federal Law "On Education"), preschool education is the initial level of general education, preceding primary general, basic general and secondary general education. Building the legal structure of the right to pre-school education has a doctrinal complexity, since today in legal science insufficient attention is paid to the content of the right to pre-school education, it is considered at the junction with research in the field of pedagogy [9, 14, 16, 23, 24], and in the key Federal law "On Education", its regulation is devoted to there is only one article (Article 64)." The scientific novelty of the work is manifested in a number of conclusions and proposals of the scientist: "If we do not abandon the legal structure of "supervision and care" in the legislation on preschool education in Russia, it is necessary to ensure its proper legal regulation. As of today, apart from the consolidation of the relevant term in the Federal Law "On Education", no other legal regulation is provided. This gap is quite dangerous, since supervision and care services do not relate to educational activities for the implementation of a pre-school education program, accordingly, a license is not required for its implementation"; "Thus, the existing excess demand for state and municipal pre-school educational institutions with insufficient numbers of them led to the development of the commercial pre-school education sector. Among them, organizations that provide services for preschool children in supervision and care without implementing a pre-school education program should be singled out as a separate category. The Federal Law "On Education" does not provide any guidelines on which organizations and how this activity should be carried out, what requirements are imposed on staff, what are the minimum standards of this service. Without abandoning the use of the category "supervision and care" in the framework of preschool education, it is necessary to include components of supervision and care activities in the content of the Federal State Educational Standard for Preschool Education. Otherwise, there is not only a doctrinal destruction of the legal structure of the "right to preschool education", but also confusion of regulatory regulation with the category of "social and household child care services", which are provided not within the framework of educational relations, but civil or social services"; "... it is necessary to legislate supervision and care in the structure of the implementation of the educational program of preschool education (for example, by conducting individual work with students provided by the program). If it is included in the implemented program, the financing of this activity may be carried out at the expense of the subsidy provided for the implementation of the basic educational program of preschool education," etc. Thus, the article makes a certain contribution to the development of domestic legal science and, of course, deserves the attention of potential readers. The scientific style of the research is fully sustained by the author. The structure of the work is quite logical. In the introductory part of the article, the scientist substantiates the relevance of his chosen research topic. In the main part of the work, the author describes the main methodological approaches to the study of the general right to education, after which he proceeds to analyze the right to preschool education, as well as its individual components - child care and supervision. The final part of the article contains general conclusions based on the results of the study. The content of the article corresponds to its title, but is not without some drawbacks. So, the author writes: "In accordance with Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (hereinafter – the Federal Law "On Education"), preschool education is the initial level of general education, preceding primary general, basic general and secondary general education" - a comma after the word "education" is omitted ("In accordance with Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (hereinafter – the Federal Law "On Education"), preschool education is the initial level of general education, preceding primary general, basic general and secondary general education"). The scientist notes: "So, with a value-based approach, the right to education can be studied as a kind of social good, the result of cognitive activity (education and training) – a set of knowledge, skills, skills, competencies, which V.V. Spasskaya calls an immaterial spiritual good [Spasskaya V. V. Legal regulation of educational relations: theoretical and legal research: dis. ...Dr. Yurid. sciences': 12.00.01 / Veronika Vsevolodovna Spasskaya. – M.: Russian Academy of State Services under the President of the Russian Federation, 2007. p. 16.]" - "spiritual good". The author points out: "Refers the right to education to the result of educational activity and T.N. Matyusheva, defining the right to education as "one of the essential social human rights aimed at obtaining a certain amount of knowledge, skills and abilities based on mutual cooperation of subjects of the field of education, with the aim of comprehensive personal development and preparation for life in society" [Matyusheva T. N. The legal status of a citizen of the Russian Federation in the field of education: dis. ... cand. Jurid. sciences': 12.00.02 / Matyusheva Tatyana Nikolaevna. – Volgograd: Rostov State University, 1999. p. 24.]". The initials of the scientist in the text of the article are placed before his surname. Thus, the article needs careful proofreading - it contains typos, punctuation errors (the list of typos and errors given in the review is not exhaustive!). The author writes: "Based on the above approaches, it can be concluded that the complexity and multicomponence of the legal nature of the right to education, since this right combines various processes in its content: socialization, upbringing, training, mastering professional competencies, systematization of knowledge, etc." However, the scientist does not offer his original definition of the concept of "the right to education", which would be quite logical after the analysis. The same applies to the definition of the concept of "the right to pre-school education". The bibliography of the study is presented by 25 sources (monographs, scientific articles, textbook). From a formal and factual point of view, this is quite enough, but some provisions of the work need to be deepened. There is an appeal to opponents, both general and private (T. N. Matyusheva, N.S. Golubkova, etc.), and it is quite sufficient. The scientific discussion is conducted by the author correctly. The provisions of the work are justified to the appropriate extent. There are conclusions based on the results of the study ("Thus, the constitutional right to pre-school education has four components in its content: education, upbringing, supervision and care, which are inextricably united. The absence of at least one of the components destroys the structure of the legal structure of "preschool education"), but they are formulated very briefly and do not reflect all the scientific achievements of the author of the article. Thus, they need to be clarified and specified.
The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of constitutional law, family law, provided that it is finalized: disclosure of the research methodology, deepening of certain provisions of the work, concretization of conclusions based on the results of the study, elimination of violations in the design of the article.
Second Peer Review
Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.
A REVIEW of an article on the topic "Controversial aspects of child care and supervision in the legal structure of the constitutional right to preschool education". The subject of the study. The article proposed for review is devoted to topical issues of child care and supervision in a comprehensive system of measures to implement the constitutional right to education. The author examines the essential characteristics of child care and supervision as legal categories, the legal regulation of relations regarding child care and supervision, as well as some practical problems related to the implementation of these points. The specific subject of the study was, first of all, the provisions of normative legal acts and the opinions of various scientists. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The goal can be designated as the consideration and resolution of certain problematic aspects of the issue of child care in a comprehensive system of measures to implement the constitutional right to education. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the norms of legislation and the provisions of by-laws of the Russian Federation). For example, the following conclusion of the author: "In the Federal Law "On Education" it is allowed to reduce the amount of parental fees to the right or not to charge it from certain categories of parents (legal representatives). However, this procedure is reduced to regulation by local acts of the educational organization (part 2 of Article 65), which gives the latter unreasonably wide discretion in matters of preferential supervision and care. For example, for disabled children, orphans and children left without parental care, as well as for children with tuberculosis intoxication studying in municipal educational organizations implementing an educational program of preschool education, parental fees for supervision and care are not charged [Decision of the Council of People's Deputies of the city of Kovrov dated 30.08.2017 No. 196 (ed. from 06/28/2023) "On approval of the Regulations on the organization of the provision of public and free preschool, primary general, basic general, secondary general education in basic general education programs, the organization of additional education for children in municipal educational organizations of the municipality of Kovrov, Vladimir region, as well as the organization of recreation for children during the holidays"]. No fee is charged for children, both or one of whose parents are disabled of group I or II and have no income other than a pension [Article 6 of the Law of the Udmurt Republic dated December 23, 2004 No. 89-FZ "On targeted social protection of the population in the Udmurt Republic"]". Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of the theory of supervision and care of a child in the legal structure of the constitutional right to preschool education. Issues of education and law have often been raised in the scientific literature. The problem of the realization of the constitutional right to education was also actively discussed. However, in the context of the problem of preschool education, it can be said that the problems stated by the author of the reviewed article rarely became the focus of attention of researchers. It is difficult to argue with the author that "According to Article 43 of the Constitution of the Russian Federation, everyone is guaranteed free and publicly accessible preschool education as part of a comprehensive constitutional right to education. In accordance with Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" (hereinafter – the Federal Law "On Education"), preschool education is the initial level of general education, preceding primary general, basic general and secondary general education. Building the legal structure of the right to pre-school education has a doctrinal complexity, since today in legal science insufficient attention is paid to the content of the right to pre-school education, it is considered at the junction with research in the field of pedagogy [9, 14, 16, 23, 24], and in the key Federal law "On Education", its regulation is devoted to there is only one article (Article 64)." Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "Since the existing legislative division of preschool education into education directly according to the appropriate educational program (it is assumed at the expense of budgetary funds in compliance with the constitutional principle of free education), and separately – supervision and care (it is assumed at the expense of parents (legal representatives) on the basis of a civil contract) leads to to the lack of universal standards of financial security. Thus, the constitutional right to preschool education has four components in its content: education, upbringing (implementation of the current Federal State Educational Standard for Preschool Education), supervision (continuous monitoring of the child) and care (preservation of a healthy physiological, sanitary, emotional and mental state of the child), which are in inseparable unity. The absence of at least one of the components destroys the structure of the legal structure of "preschool education"." These and other theoretical conclusions can be used in further scientific research. Secondly, the author suggests ideas for improving the current legislation. In particular, the Federal Law On Education does not provide any guidelines on which organizations and how this activity should be carried out, what requirements are imposed on staff, what are the minimum standards of this service. Based on the above, we believe that, without abandoning the use of the category "supervision and care" in the framework of preschool education, it is necessary to include components of supervision and care activities in the content of the Federal State Educational Standard for Preschool Education. Otherwise, there is not only a doctrinal destruction of the legal structure of the "right to preschool education", but also a confusion of regulatory regulation with the category of "social and household child care services", which are provided not within the framework of educational relations, but civil or social services." The above conclusion may be relevant and useful for law-making activities. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Administrative and Municipal Law", as it is devoted to legal problems related to the implementation of the constitutional right to education. The content of the article fully corresponds to the title, since the author considered the stated problems and fully achieved the purpose of the study. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography.
The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Abankina I.V., Abankina I.V., Afanasyev V.S. Bartsits I.N., Belyakina A.I., Bylinskaya N.A. and others). Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"
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